TMI Blog2018 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the appellant, the benefit of notification cannot be to the appellant. Condition 5 (d) of N/N. 01/2010-CE dated 6.2.2010 is procedural in nature and for complying with the said condition with a delay cannot be fatal to the appellant - the self credit taken by the appellant cannot be denied. Appeal allowed - decided in favor of appellant. - Appeal No. E/60516-60526/2017 - Final Order No. 60140-60150/2018 - Dated:- 27-2-2018 - Mr.Ashok Jindal, Member (Judicial) And Mr.Devender Singh, Member (Technical) For the Appellant: Shri Vikrant Kackria, Advocate For the Respondent: Shri A.K.Saini, AR ORDER Per : Ashok Jindal The appellants are in appeal against the impugned orders. 2. The facts of the case are that for the month of April, 2015 to June, 2015, in terms of Notification No.01/2010-CE dated 6.2.2010, the appellants were required to file a statement of utilization of credit, payment of duty and taking of credit by 15th day of subsequent month. As the appellants had contravened the said condition of the Notification for the month of April, 2015 to June, 2015 by not filing a statement for the subsequent month till 15th day but were filed with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are procedural in nature. For violation of conditions which are procedural in nature, the benefit of exemption notification cannot be denied. He also brought on record the larger bench decision in the case of Breach Candy Hospital Research Centre-2000 (118) ELT 271 (Tri.-LB) to say that merely delay in filing declaration cannot vitiate benefit the notification. Further, he also relied on the decision in the case of Herbal Concepts Healthcare Pvt.Ltd-2013 (294) ELT 570 (Tri.-Del.) to say that merely because formal letter was filed subsequently, the same cannot be a ground for denial of the benefit of notification. He has also brought on record the order passed by the adjudicating authority in the case of M/s. Aroma Hightech Limited vide Order dated 7.2.2013, wherein the objection raised by the audit has not been admitted by the Ministry. Therefore, he prayed that merely delay in filing the statement cannot be the reason for denial of the benefit of Notification No.01/2010-CE dated 6.2.2010. 5. On the other hand, Ld.AR reiterated the findings of the impugned orders. 6. Heard the parties and considered the submissions. 7. We have examined the notification No.01/2010-CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) The manufacturer shall submit a statement of the duty paid by utilization of Cenvat credit, on each category of goods specified in the said Table and cleared under this notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid .. Notification No.33/99-CE dated 8.7.1999: 2C. The exemption contained in this notification shall be given effect to in the following manner, namely :- (a) The manufacturer shall submit a statement of the total duty paid by utilisation of CENVAT credit, on each category of goods specified in the Table and cleared under this notification, to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid. 9. As the conditions 2C of the Notification No.32/99-CE and Notification No.33/99-CE dated 8.7.1999 are similar with condition 5(d) of Notification No.01/2010-CE. This Tribunal has examined the Notification No.32/99-CE and Notification No.33/99-CE dated 8.7.1999 in the case of Vinay Cement Limited (supra) and observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinction has to be made between substantive mandatory policy consideration and those in the area of procedure. The notification required the assessee to submit statements of duties paid under PLA by 7th of the following month. Nothing more is required to be done by the assessee for claiming the benefit. RT-12 returns were submitted to the range superintendent and as such we hold that late filing of a separate statement by itself will not result in denial of the substantive benefit, otherwise available to the respondents. There is no allegation much less any finding that the respondents have not fulfilled the substantive conditions of the notification. We also take note of the Tribunal s Order No. A-246/KOL/2001, dt. 26-4-2001 [2002 (147) E.L.T. 724 (Tribunal)] wherein the Revenue s appeal filed on the identical ground in respect of the same notification was rejected. Accordingly, we do not find any merits in all the three appeals of the Revenue and reject the same. 11. We also take note of the decision the Hon ble Supreme Court in the case of Mangalore Chemicals Fertilizers Ltd. (supra), the Apex Court has observed as under: .....Truly, speaking liberal and strict constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cals Fertilizers Ltd. Vs. DC [1991 (55) ELT 437 (SC)] has enunciated that while granting the exemption, the distinction is required to be made between a procedural condition of a technical nature and a substantive condition and has held that non-observance of procedural condition of technical nature is condonable. Similarly, the CESTSAT in its decision in the case of: (i) CCE, Shillong Vs. K.K. Beverages Pvt.Ltd.{2002 (148) ELT 567 (T-Kol)] (ii) CCE, Shillong Vs. Vinay Cement Ltd.[2002 (147) ELT 724 (T)] 3. In view of the above, the objection may be dropped. Approved by Special Secretary to Govt.of India (F.No.232/290/2008-CX.7) 5. Since the objection was being contested by the department, the present show cause notice, of protective nature, was issued on 10.03.2010, wherein it was proposed to recover the wrongly availed credit of duty amounting to ₹ 2,32,12,642/- in terms of provisions of Para 2C (g) of the said Notification. It was also proposed to impose penalty under Rule 27 of Central Excise Rules, 2002. 6. The Draft Audit Report No.290/2007-2008 was included as Audit Para No.3.1 of the Report of the Comptroller and Auditor General o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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